JURIST Guest Columnist John Robinson Jr., University of Utah S.J. Quinney College of Law Class of 2014 discusses the consolidated cases of EPA v. EME Homer City Generation and American Lung Association v. EME Homer City Generation, and the EPA’s efforts to address cross-state air pollution…

The US Supreme Court heard arguments [PDF] this month on the consolidated cases of EPA v. EME Homer City Generation and American Lung Association v. EME Homer City Generation. The cases present three questions—one procedural and two substantive—that encircle EPA’s efforts to address cross-state air pollution through its recently-promulgated Transport Rule.

The Transport Rule arises under the Clean Air Act’s (CAA) “good neighbor” provision, which Congress originally implemented in 1977 after its previous efforts to address cross-state air pollution proved inadequate. However, the original good neighbor provision didn’t get the job done either. Congress addressed the issue again in its 1990 CAA amendments, requiring each state’s CAA implementation plan to prohibit emissions that “contribute significantly” to another state’s air quality problems. Essentially, the idea is that upwind states should still bear responsibility for their pollution after it blows across state lines.

But Congress didn’t bother to specify what exactly it meant by “significant contribution” and one can imagine how EPA sees that lack of specificity as a grant of broad discretion. One can also imagine how some states might not see it that way. At the core, these cases are about that gap filling.

One question asks whether the CAA requires a strictly proportional approach to determine emission reductions in upwind states (the DC Circuit’s position), or if EPA’s cost-benefit balancing approach is statutorily acceptable. This one is about statutory construction and judicial imposition of methodology on an agency. The other question is about timing. That is, must EPA define what it means to “contribute significantly” before states need to include good neighbor provisions in their implementation plans, or do states add the provisions in the first instance and then EPA determines if they sufficiently protect downwind states?

EPA takes the position that states must write good neighbor provisions first and, if they don’t, EPA must promulgate federal provisions using the methodology that it deems best. And that’s what EPA did here. It reviewed a number of state implementation plans and found them wanting. Some states hadn’t implemented sufficiently robust good neighbor provisions and others hadn’t implemented anything at all. The Transport Rule cures those deficiencies by imposing federal provisions on the offending states. EPA’s rule uses a formula that includes cost-benefit analysis and some of the affected states think that method makes them carry more than their fair share. The DC Circuit didn’t like that balancing method either and held that a state’s good neighbor emission reduction should be strictly proportional to its downwind effect, which renders cost-benefit analysis improper.

As one expects, these cases turn on a fine line and you might as well flip a coin as decide on the merits—that bright and reasonable minds may arrive at different conclusions is an understatement. Indeed, three already did [PDF]. But, assuming they reach the merits (which a procedural decision would avoid), eight justices (Justice Alito recused himself) will need to find their side of the line; the court’s decision will go to the heart of administrative law, cooperative federalism and management of the national commons. Both arguments are compelling and there is plenty of commentary out there about the nuances of each. So, let’s step back and view these issues from a wider perspective.

These cases, once you distill the statutory construction, federalism and judicial deference, really go to this country’s vision of itself and the importance of common resources. Essentially, what does it mean to be a “good neighbor” and member of a larger community (i.e., a state in the nation)?

The DC Circuit invalidated EPA’s good neighbor methodology and imposed a formula of its own. The circuit’s strict-apportionment method places primacy on the upwind state and thereby implicitly concerns itself with the cost of emissions reduction. It would be unfair, according to the court, to make an upwind state bear even a slightly disproportionate burden. Indeed, part of the circuit’s problem with EPA is that the Transport Rule might require some upwind states to over control their emissions (oh, the horror! of over control). That is, EPA’s methodology opens the door to a possibility that some upwind state might remove more pollution tonnage from the air than strictly proportional in a binary understanding of the state’s downwind effects.

In so concerning itself, the circuit relegates the benefit of cleaner air to a tertiary position, which is exactly backwards. It further assumes that, in the name of fairness, upwind emission controls should be set at the lowest possible level. Indeed, the circuit thinks that EPA must ensure that no state reduce emissions more than the absolute minimum. Said another way, the circuit’s reasoning basically requires a state to externalize as many its industrial pollution costs as possible. But, externalized costs are the essence of the tragedy of the commons and, perversely, exactly what Congress’s good neighbor provision was supposed to correct in the first place.

The circuit’s thinking is fundamentally flawed and, even if legally correct, badly misunderstands management of an invaluable national commons—the air we all breathe. The correct way of addressing this problem is to place primacy on the downwind benefits. It’s not the unfairness to an upwind state’s regulatory regime at issue, but the unfairness of downwind pollution filtering through human lungs. Picture that unfairness this way: PM2.5 and ozone pollution cause [PDF] five percent of deaths in the US. Let me say that again. One out of twenty deaths is attributable to these two types of air pollution.

On those terms, requiring absolute minimum compliance sort of misses the point. Arguing about the possibility of over control instead of actually implementing controls is literally killing us. And that’s precisely the problem with the circuit’s other ruling on who gets the first go at writing sufficiently protective good neighbor provisions. The court’s opinion sets up the strong possibility of a years-long ping pong game between EPA and the individual states. Meanwhile, the downwind states remain in non-attainment until after match point.

EPA’s methodology may not be perfect, but it has the distinct advantage of actually addressing the non-binary relationship between pollution and geography. Pollution doesn’t just move from point A to B. It swirls, mixes, and changes with onion-skin layers of complexity. By building a cost-benefit function into the equation, EPA has both recognized that complexity and broadened the issue of fairness. EPA’s rule essentially takes a more regional approach as opposed to the circuit’s strictly point-to-point comparative one.

Under the EPA’s cost balancing, a state might shoulder somewhat more than its proportional responsibility, but only if it is comparatively cheaper for that state to do so. That is, cost-efficient—albeit imposed—regional cooperation. And, overcontrol is a meaninglessly relative term anyway. For instance, state A is an upwind polluter of states X and Y. State A reduces emissions until state X reaches compliance, but the reduction proves greater than necessary to achieve compliance in state Y. I suppose one could then say that X has over controlled its emissions. But of course that means that state Y doesn’t deserve cleaner-than-the-dirtiest-possible air.

In the end, it is a mistake to let wildly complicated statutory construction obfuscate the simple concept of nuisance. We’ve known for over a century that it’s not okay for one state to dirty the air of another. Indeed, Justice Holmes wrote in 1907 that it is “fair and reasonable” for a state to demand its territory not be polluted by forces “beyond its control” (emphasis mine).

This is precisely why protecting the commons requires a strong federal component—one that properly restrains a state’s incentive to externalize as many of its air-pollution costs as possible. The Transport Rule’s cost-benefit approach is a reasonable one, and properly emphasizes the benefit of having clean air, not the cost of achieving it. Even if legally correct, the DC Circuit’s opinion removes the cooperation from cooperative federalism and sets up a situation where states are adverse to their neighbors based on a static view of proportionality. Even if overturned, such reasoning should signal a fundamental rethinking of how good neighbors behave towards one another, particularly in the context of shared resources and the national commons.

John Robinson Jr. is the Executive Process Editor for the Utah Law Review and President of the Natural Resources Law Forum. He worked as a summer honors clerk for the US Environmental Protection Agency’s Office of General Counsel and as an appellate intern at Zimmerman Jones Booher, LLC.

Suggested citation: John Robinson Jr., Airborne Emissions in the National Commons: Comments on EME Homer , JURIST – Dateline, Jan. 21, 2014, http://jurist.org/dateline/2014/01/john-robinson-environmental-law.php